Citation Nr: 0007379
Decision Date: 03/20/00 Archive Date: 03/23/00
DOCKET NO. 96-30 958 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUES
1. Entitlement to an increased rating for right (major)
shoulder bursitis, currently evaluated as 10 percent
disabling.
2. Entitlement to an increased rating for lumbar strain,
currently evaluated as 10 percent disabling.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The veteran served on active duty from November 1990 to
February 1995.
The Department of Veterans Affairs (VA) Regional Office (the
RO) granted service connection for right shoulder bursitis
and lumbar strain in June 1995, and assigned each disability
a 10 percent rating, effective from February 1995. The
veteran duly appealed the matters of the appropriate level of
compensation for each disability to the Board of Veterans'
Appeals (the Board).
The RO denied service connection for right and left knee
disability in June 1995 and advised the veteran of his right
to appeal. Those decisions were not appealed. Accordingly,
those issues are not before the Board. 38 U.S.C.A. § 7104
(West 1991).
FINDINGS OF FACT
1. The veteran has mild pain and discomfort at the extremes
of full planar ranges of motion of his right shoulder. There
is no X-ray evidence of arthritis. He is able to elevate his
right arm beyond the shoulder level.
2. The veteran's service-connected right shoulder disability
does not present an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization.
3. The veteran has a full or nearly full range of motion of
his lumbar spine with minimal discomfort; muscle spasm on
extreme forward bending and unilateral loss of spine motion
in a standing position are not present.
4. The veteran's service-connected lumbar spine disability
does not present an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization.
CONCLUSIONS OF LAW
1. The criteria for a disability rating in excess of 10
percent for right shoulder bursitis have not been met.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.31,
4.40, 4.45, 4.71, 4.71a, Diagnostic Codes 5003, 5019, 5201
(1999).
2. The criteria for a disability rating in excess of 10
percent for lumbar strain have not been met. 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic
Codes 5292, 5295 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Preliminary matters - well groundedness of the claims/duty
to assist/standard of proof
As an initial matter, the Board notes that the veteran's
claims are well grounded within the meaning of 38 U.S.C.A. §
5107(a). When a veteran is awarded service connection for a
disability and appeals the RO's rating determination as to
the level of compensation assigned, the claim continues to be
well grounded as long as the claim remains open and the
rating schedule provides for a higher rating. See Shipwash
v. Brown, 8 Vet. App. 218, 224 (1995).
Once a claim has been determined to be well grounded, VA has
a duty to assist the veteran with the development of evidence
to support the claim. 38 U.S.C.A. § 5107(a).
The veteran's representative has contended that a remand is
warranted for a physical examination of the veteran. The
Board disagrees, however, for two reasons. First, the
evidence of record is adequate to rate the veteran. There
are two VA examination reports for the right shoulder that
are adequate for rating purposes, as can be seen from a
comparison of the information they contain with the rating
criteria. With respect the lumbar spine, a February 1997 VA
outpatient treatment report concerning his back is adequate
for rating purposes. See 38 C.F.R. § 3.326(b). The
physician who evaluated the veteran's back in early February
1997 found all normal clinical findings, including those
specific to the rating criteria for Diagnostic Codes 5292 and
5295, and 38 C.F.R. §§ 4.40 and 4.45. The veteran has not
subsequently reported additional increase in the severity of
the back disability or different back symptoms.
The Board is aware that the RO scheduled another examination
in 1999. Such examination was not required, however. The
provisions of 38 C.F.R. § 3.327 indicate that reexaminations
are to be required if evidence indicates that there has been
a material change in a disability or that the current rating
may be incorrect. The Board does not see the facts in this
case as fitting these criteria.
Moreover, the veteran failed without good cause to report for
the scheduled VA examination. See 38 C.F.R. § 3.655(b)
(1999) (in original claim situation, rate the claim based on
evidence of record if the veteran has failed to appear for a
VA examination). There is no evidence of record which
indicates that the veteran failed to receive the notice of
the scheduled examination, so it can be presumed that the
veteran received notice and that VA discharged any and all
notice duty it had to him. See Mason v. Brown, 8 Vet. App.
44 (1995); Saylock v. Derwinski, 3 Vet. App. 394 (1992);
Ashley v. Derwinski, 2 Vet. App. 306, 309 (1992).
If the veteran did not in fact receive the notice, it was
because he failed to keep VA abreast of his whereabouts. The
record reflects that a November 1999 RO memo reported that,
without any success, the RO had tried to find a phone number
for the veteran in the two towns where there had been record
addresses, and that the American Legion had tried to locate
him also. The United States Court of Appeals for veterans
claims (the Court) has noted that "it is the burden of the
veteran to keep the VA apprised of his whereabouts. If he
does not do so, there is no burden on the part of the VA to
turn up heaven and earth to find him." Hyson v. Brown, 5
Vet. App. 262, 265 (1993).
The Board is satisfied that all relevant facts have been
properly developed. Moreover, there is no indication that
there are additional records which would aid in its decision.
The Board concludes that the record is complete and there is
no further duty to assist the veteran in developing his claim
under 38 U.S.C.A. § 5107(a).
Once the evidence has been assembled, it is the Board's
responsibility to evaluate the evidence. See 38 U.S.C.A.
§ 7104. When there is an approximate balance of evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b). In Gilbert v. Derwinski, 1 Vet. App. 49,
53 (1990), the United States Court of Veterans Appeals stated
that "a veteran need only demonstrate that there is an
"approximate balance of positive and negative evidence' in
order to prevail." To deny a claim on its merits, the
evidence must preponderate against the claim. Alemany v.
Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet.
App. at 54.
Pertinent law and regulations
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity in civil occupations. 38 U.S.C.A. § 1155;
38 C.F.R. § 3.321(a). The Board is required to adjudicate
claims for increased ratings in light of the rating criteria
provided by the VA Schedule for Rating Disabilities, 38
C.F.R. Part 4. See Massey v. Brown, 7 Vet. App. 204, 208
(1994). Separate diagnostic codes identify the various
disabilities.
In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States
Court of Appeals for Veterans Claims held that in evaluating
a service-connected disability involving a joint rated on
limitation of motion, the Board erred in not adequately
considering functional loss due to pain under 38 C.F.R. §
4.40 and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
§ 4.45. The Court in DeLuca held that Diagnostic Codes
pertaining to range of motion do not subsume 38 C.F.R. §§
4.40 and 4.45 (1999), and that the rule against pyramiding
set forth in 38 C.F.R. § 4.14 (1999) does not forbid
consideration of a higher rating based on a greater
limitation of motion due to pain on use, including use during
flare-ups.
The Board notes that disability of the musculoskeletal system
is the inability to perform normal working movement with
normal excursion, strength, speed, coordination, and
endurance, that weakness is as important as limitation of
motion, and that a part which becomes disabled on use must be
regarded as seriously disabled. Functional loss may be due
to pain, supported by adequate pathology and evidenced by the
visible behavior of the claimant undertaking the motion.
Weakness is to be considered in evaluating the degree of
disability, but a little-used part of the musculoskeletal
system may be expected to show evidence of disuse, through
atrophy, the condition of the skin, absence of normal
callosity, or the like. 38 C.F.R. § 4.40.
The provisions of 38 C.F.R. § 4.45 contemplate inquiry into
whether there is crepitation, limitation of motion, weakness,
excess fatigability, incoordination, impaired ability to
execute skilled movements smoothly, pain on movement,
swelling, deformity, or atrophy of disuse. Instability of
station, disturbance of locomotion, and interference with
sitting, standing, and weight-bearing are also related
considerations. It is the intention of the rating schedule
to recognize actually painful, unstable, or malaligned
joints, due to healed injury, as at least minimally
compensable.
If a service-connected disability presents an exceptional or
unusual disability picture with such related factors as
marked interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards, an extraschedular evaluation
commensurate with the average earning capacity impairment may
be assigned. 38 C.F.R. § 3.321(b)(1).
Entitlement to an increased rating for right shoulder
bursitis
Factual background
The evidence of record indicates that the veteran's right
upper extremity is his dominant, or major, extremity.
A January 1995 service medical record indicates that the
veteran injured his right shoulder. He had a full active
range of motion of the shoulder. The assessment was right
shoulder subacromial bursitis.
A February 1995 service medical record indicates that the
veteran had a full active range of motion and 5/5 motor
strength. On service evaluation later in February 1995,
X-rays were reported to reveal no displacement of the
acromioclavicular joint or of the glenohumeral joint. The
assessment was a partial tear of the coracohumeral joint.
The veteran was told to rest and not to do overhead work,
pushups, or lifting of over 15 pounds with the right arm.
The veteran left service in February 1995 and filed a claim
for service connection. A VA physical examination was
completed in April 1995. The veteran complained of right
shoulder pain since January 1995. He reported that he still
had pain on rotation of the shoulder joint and that it was
exacerbated with lifting.
Clinically, the veteran's posture was good. Muscle strength
was 5/5 in the upper extremities. Abduction of the shoulders
was from zero to 180 degrees, with complaints of pain at the
extreme of the maneuvers. The veteran complained of pain on
internal rotation of the right shoulder when its rotation
approached 85 to 90 degrees, but no pain on external rotation
of the right shoulder. There was a palpable click in the
region of the acromioclavicular joint on rotation. The
assessment was persistent right shoulder pain since January
1995. X-rays of the right shoulder were normal.
As noted in the Introduction, service connection for right
shoulder bursitis was granted by the RO in June 1995. A 10
percent disability rating was assigned under 38 C.F.R.
§ 4.71a, Diagnostic Code 5019.
On VA evaluation in February 1997, the veteran complained of
right shoulder pain. He stated that occasionally with one
assistant, he would hold a piece of 120 pound sheetrock above
his head while it was secured in place. He denied fine motor
deficits such as with eating and writing. Clinically, his
right shoulder had a full range of motion and good strength
and normal distal neurovascular findings, and the shoulder
was non-tender. The assessment was chronic intermittent
right shoulder strain. Body mechanics and as needed ice,
heat, and use of Motrin(r) were discussed with the veteran
weight loss, and he was advised to see the physical medicine
and rehabilitation service.
A VA orthopedic examination was conducted in February 1997.
At that time, the veteran indicated that he had not kept
appointments with the physical medicine and rehabilitation
service in 1996 because of work responsibilities and that he
had been discharged from those clinics as a no-show. He
denied losing any work due to the right shoulder. He stated
that since filing his claim, he had had an unremitting right
shoulder pressure sensation without any pain-free intervals
except for at night.
Clinically, he was an athletic appearing, extremely well
muscled man in no apparent distress. His grip strength was
intact and symmetric bilaterally. Active range of motion
testing of the right shoulder revealed that forward elevation
and abduction were preserved, with motion from zero to 180
degrees without discomfort or deficits. Elbow flexion was
from zero to 145 degrees with out discomfort. Passively,
shoulder motion was also from zero to 180 degrees and
symmetric. The veteran had mild right glenohumeral
discomfort with abduction from 170 to 180 degrees. There was
mild right-sided glenohumeral crepitus with forward elevation
and abduction of the shoulder. Joint line and bony landmarks
in the shoulders were without tenderness or deformity. There
was no relative motion of the glenohumeral joint or
acromioclavicular joint with vigorous stress testing. There
was no relative acromioclavicular clicking sensation as had
been documented previously in 1995. The assessment was right
shoulder bursitis after traumatic injury in 1995, with
exacerbation of this condition in the veteran's present
duties as a sheetrocker. X-rays were normal.
Pertinent law and regulations
Bursitis is rated as degenerative arthritis. 38 C.F.R. Part
4, Diagnostic Code 5019. Degenerative arthritis is rated
based upon limitation of motion of joints affected.
38 C.F.R. Part 4, Diagnostic Code 5003.
Limitation of motion of the major arm at the shoulder level
warrants a 20 percent rating. 38 C.F.R. Part 4, Diagnostic
Code 5201.
In every instance where the minimum schedular evaluation
requires residuals and the schedule does not provide a no
percent evaluation, a no percent evaluation will be assigned
when the required residuals are not shown. 38 C.F.R. § 4.31.
Analysis
The RO has rated the veteran's right shoulder disability as
10 percent disabling under Diagnostic Code 5019. The note
for Diagnostic Code 5019 indicates that it is to be rated
based upon limitation of motion.
Diagnostic Code 5201 permits a 20 percent rating for the
right shoulder disability if it prevents arm movement beyond
the shoulder level. In this case, the evidence clearly shows
that the veteran has right arm elevation and abduction well
beyond the shoulder level, which is to 90 degrees. See
38 C.F.R. § 4.71, Table I (1999). The veteran's forward
elevation and abduction are to 180 degrees, according to the
February 1997 VA examination report, and this constitutes
motion. Accordingly, Diagnostic Code 5201 does not permit a
compensable rating.
Next for consideration is the matter of an increased rating
pursuant to 38 C.F.R. §§ 4.40 and 4.45. In this case, the
evidence clearly shows some pain on motion. Clinically, pain
has only been demonstrated at the extremes of abduction and
internal rotation, and that was at the time of the April 1995
VA examination. The pain was not described as excruciating
or as any type of pain which is towards that end of the
continuum. On VA examination in February 1997, only mild
discomfort with the extreme of abduction was observed and the
veteran had a full planar range of motion. Moreover, the
April 1995 VA examination report shows that the veteran has
5/5 muscle strength in his shoulder, and the February 1997 VA
examination report described the veteran as being extremely
well muscled.
The provisions of 38 C.F.R. §§ 4.40 indicate that impairment
of function due to pain can be expected to be demonstrated by
atrophy, weakness, incoordination or the like. In this case
no such manifestations have been demonstrated. Only mild
discomfort was noted to be experienced by the veteran at the
extremes of motion on VA examination in February 1997. He
has almost a full planar motion range before he experiences
mild discomfort at its extremes, and he is described as very
muscular and having 5/5 strength in his upper extremities.
The Board concludes that a 10 percent rating would adequately
compensate the veteran for the mild degree of functional
impairment shown. There is no evidence that the functional
impairment demonstrated, if any, approaches the level at
which a 20 percent rating could be demonstrated (i.e.
equivalent to limitation of motion of the arm above shoulder
level). Accordingly, for the reasons and bases expressed
above, the Board concludes that the preponderance of the
evidence is against the assignment of a disability rating in
excess of the currently assigned 10 percent.
Entitlement to an increased rating for lumbar strain
Factual background
Service medical records reveal treatment for low back pain.
In February 1992, the veteran complained of lower back pain
for two weeks after lifting. He complained that bending and
lifting caused discomfort. Clinically, he had a decreased
range of motion with discomfort. The assessment was possible
low back strain.
On VA orthopedic examination in April 1995, the veteran
complained of back pain which tended to be worse with
lifting. Clinically, he could walk back and forth well. His
posture was good. He had an exaggerated lordosis and a mild
scoliosis. He could flex his lumbar spine to 90 degrees
without discomfort and extend it beyond 30 degrees. He could
right and left flex the spine beyond 30 degrees and rotate it
to 55 degrees right and left with only minimal discomfort in
the lower spine. There was no spasm in the back. The
assessment was lumbar pain, possibly related to lordosis.
X-rays of the lumbar spine revealed partial lumbarization of
S1 and a mild scoliosis in the upper lumbar spine, the latter
possibly positional in nature.
In the June 1995 RO rating decision, a 10 percent disability
rating was assigned for lumbar strain under 38 C.F.R.
§ 4.71a, Diagnostic Code 5295.
On VA evaluation in February 1997, the veteran complained of
lower back pain and spasm for two or three years, and that it
was worsening. Clinically, his back had a full range of
motion and was nontender. The assessment was low back
strain. Body mechanics and as needed ice, heat, Motrin(r), and
physical therapy were prescribed.
Pertinent law and regulations
Lumbosacral strain with characteristic pain on motion
warrants a 10 percent rating. Lumbosacral strain with muscle
spasm on extreme forward bending and unilateral loss of
lateral spine motion in a standing position warrants a 20
percent rating. 38 C.F.R. § 4.71, Diagnostic Code 5295.
When there is slight limitation of motion of the lumbar
spine, a 10 percent rating is warranted. When there is
moderate limitation of motion of the lumbar spine, a 20
percent rating is warranted. Diagnostic Code 5292.
Words such as "slight", "moderate" and "severe" are not
defined in the VA Schedule for Rating Disabilities. Rather
than applying a mechanical formula, the Board must evaluate
all of the evidence to the end that its decisions are
"equitable and just". 38 U.S.C.A. § 7104; 38 C.F.R. 4.6
(1998).
Analysis
The RO has assigned the veteran a 10 percent rating under
Diagnostic Code 5295. The Code provides for a 10 percent
rating when there is characteristic pain on motion, and a 20
percent rating when there is muscle spasm on extreme forward
bending and unilateral loss of lateral spine motion.
The veteran was able to laterally bend his lumbar spine
beyond 30 degrees bilaterally with only minimal discomfort
and could flex his lumbar spine to 90 degrees without
discomfort at the time of the April 1995 VA examination, and
he had a full range of motion on VA outpatient treatment in
February 1997. The evidence does not show that the veteran
has muscle spasm on extreme forward bending or unilateral
loss of spine motion in a standing position. As such, the
provisions of Diagnostic Code 5295 do not permit an increased
rating.
The Board has given consideration to evaluating the veteran's
service-connected disability under a different Diagnostic
Code. The Board notes that the assignment of a particular
Diagnostic Code is "completely dependent on the facts of a
particular case." See Butts v. Brown, 5 Vet. App. 532, 538
(1993). One Diagnostic Code may be more appropriate than
another based on such factors as an individual's relevant
medical history, the current diagnosis and demonstrated
symptomatology. Any change in a Diagnostic Code by a VA
adjudicator must be specifically explained. See Pernorio v.
Derwinski, 2 Vet. App. 625, 629 (1992).
The provisions of Diagnostic Code 5292 do not permit an
increased rating. As noted above, a 20 percent rating under
Diagnostic Code 5292 requires moderate limitation of motion
of the lumbar spine. The medical evidence, in particular the
February 1997 VA outpatient treatment record, shows that the
veteran has a full range of motion of the lumbar spine.
The Board has also considered whether an evaluation in excess
of 10 percent is warranted on the basis of functional loss
due to pain under 38 C.F.R. § § 4.40 and 4.45. However, the
veteran's complaints of pain have already been contemplated
in the criteria of Diagnostic Code 5295. See Johnson v.
Brown, 9 Veteran. App. 7, 11 (1996); DeLuca v. Brown, 8 Vet.
App. 202, 206-07 (1995). More specifically, the veteran's
reported back pain does not result in loss of motion of the
lumbosacral spine. As discussed above, the veteran reported
that he had back pain; however, on range of motion testing
during the most recent VA evaluation, no pain was reportedly
elicited. In short, the clinical evidence on file does not
demonstrate that current low back disability results in loss
of normal excursion, strength, speed, coordination, or
endurance, or that it causes swelling, deformity,
instability, disturbance of locomotion, or atrophy of disuse,
weakness, fatigability, or pain with motion sufficient to
support an increased rating. See Spurgeon v. Brown, 10 Vet.
App. 194 (1997). As noted above, the most recent evaluation
of the back resulted in essentially normal findings.
Accordingly, the Board concludes that a preponderance of the
evidence is against the claim; the veteran remains most
appropriately evaluated at the 10 percent rate under
Diagnostic Code 5295.
Extraschedular consideration
Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board
cannot make determinations as to extraschedular evaluations
in the first instance. However, in June 1997, the RO
considered the extraschedular criteria for the both the right
shoulder and lumbar spine disability. The assignment of an
extraschedular rating was rejected because, in the words of
the RO, "the evidence available for review fails to
establish any unusual disability picture to warrant referral
to the Chief Benefits Director or the Director, Compensation
and Pension Service for extraschedular consideration."
Therefore, the matter of extraschedular disability ratings is
before the Board.
Ordinarily, the Rating Schedule will apply unless there are
exceptional or unusual factors which would render application
of the schedule impractical. See Fisher v. Principi, 4 Vet.
App. 57, 60 (1993). According to the regulation, an
extraschedular disability rating is warranted upon a finding
that "the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization that would render impractical the application
of the regular schedular standards." 38 C.F.R.
§ 3.321(b)(1).
The Board finds that there is no evidence of record to show
that either disability markedly interferes with employment or
affects the veteran's employability in ways not contemplated
by the ratings now assigned under the Rating Schedule. The
veteran is able to squat without a problem, can hold a piece
of 120 pound sheetrock up with an assistant while it is being
fastened, is very muscular, and skipped VA treatment so he
could work. He has not presented unusual disability pictures
showing marked interference with employment due to his right
shoulder or lumbar spine disability. Furthermore, there is
no evidence to indicate that either disability affects his
earning capacity by requiring frequent hospitalizations.
There in no evidence of hospitalization after service.
Fenderson
The Board notes that a claim placed in appellate status by
disagreement with the original or initial rating award, as is
the case here with respect to each of the two claims at
issue, remains an "original claim" and is not a new claim for
increase. Fenderson v. West, 12 Vet. App. 119 (1999). In
such cases, separate compensable evaluations must be assigned
for separate periods of time if such distinct separately
compensable periods are shown by the competent evidence of
record during the pendency of the appeal, a practice known as
"staged" ratings. Id. at 126.
In this case, the Board is unable to identify any distinct
period since February 1995 when more than a 10 percent rating
is warranted for each disability at issue.
ORDER
Entitlement to a disability rating in excess of 10 percent
for right shoulder strain is denied.
Entitlement to a disability rating in excess of 10 percent
for lumbar spine strain is denied.
Barry F. Bohan
Member, Board of Veterans' Appeals